Summary
holding that a defendant cannot challenge the constitutionality of a statute when he cannot show that the alleged unconstitutional feature of the statute adversely affected him
Summary of this case from Byrd v. StateOpinion
SC 1213.
December 18, 1975.
Appeal from the Circuit Court, Jefferson County, William A. Thompson, J.
Jesse W. Shotts, Birmingham, for appellant.
Order of grant of administration. Administration of intestate's estate must be granted to someone of the persons herein named if willing to accept and satisfactory to serve in the following order: (1) the husband or widow, (2) the next-of-kin entitled to share in the distribution of the estate . . . . Section 84, Rules as to grant of letters in certain cases. If several persons of the same degree of kindred to the intestate, . . ., are entitled to the administration, men are to be preferred to women, . . . and when a married woman is entitled hereto, it may be granted to her husband in her right. Code of Alabama, 1940 (Recompiled, 1958), Title 61. The provision of a state probate court giving a mandatory preference for appointment as administrator of a decedent's estate to a male applicant over a female applicant otherwise equally qualified for appointment as being in the same entitlement class established by the probate court, violates the equal protection clause of the Fourteenth Amendment. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 255, conformed to 94 Idaho 542, 493 P.2d 701. It is settled that the equal protection clause of the Fourteenth Amendment operates fully to include women within its protective scope. Discrimination against women as such is invalid. 16 Am.Jur.2d. Constitutional Law, § 514.
Rogers, Howard, Redden Mills, Birmingham, for appellees.
A widow waives her statutory priority to the grant of letters of administration on her husband's estate by failing to apply for appointment within 40 days from the date of death. Title 61, Section 83 Code of Alabama 1940 (Recompiled, 1958); Gilmore v. Roberson, 273 Ala. 230, 139 So.2d 604 (1962); Stanley v. Stanley, 202 Ala. 661, 81 So. 617 (1919); Garrett v. Harrison, 201 Ala. 186, 77 So. 712 (1918). A grant of letters of administration within 40 days of death to one not entitled thereto by statutory priority is not void, and is voidable only upon objection made thereto within 40 days of death by someone having a higher priority. Starlin v. Love, 237 Ala. 38, 185 So. 380 (1938); Castleberry v. Hollingsworth, 215 Ala. 445, 111 So. 35 (1927); Childs v. Davis, 172 Ala. 266, 55 So. 540 (1911). A person does not have standing to litigate the question of the constitutionality of legislation unless he, his rights, or his property will be affected by its operation. Smith v. Potts, 293 Ala. 419, 304 So.2d 578 (1974); Caiola v. City of Birmingham, 288 Ala. 486, 262 So.2d 602 (1972); State v. Merrill, 218 Ala. 149, 117 So. 473 (1928); Jones v. Black, 48 Ala. 540 (1872).
This is an appeal from an order of the Circuit Court of Jefferson County, denying Jessie Louise McCord's petition for removing Dennis E. Stephens as administrator of the estate of Walter Woodrow McCord. We affirm.
No transcript of the evidence having been filed, we consider only the transcript of the record proper, showing the petition, its amendment, and the court's order.
Walter Woodrow McCord died on October 14, 1973, and Dennis Stephens was appointed administrator of the estate on October 29.
The thrust of the petition is that, when letters of administration were issued to Stephens, appointing him administrator, Jessie McCord, the widow, with first priority, was under an incapacity to serve because she faced criminal charges. She was acquitted on December 19, 1974, and now she says she is competent to assume her priority. She prays for the removal of Stephens, and her appointment.
Section 81, Title 61 Code of Alabama, gives the husband or widow first priority to serve as administrator of an intestate estate. But, under § 83, Title 61, this priority must be claimed by applying for letters of administration within 40 days after the death of the intestate. By her failure to apply within the 40-day period after the death of the intestate, Ms. McCord waived her preferential right to be issued letters of administration. Stanley v. Stanley, 202 Ala. 661, 81 So. 617 (1919); Gilmore v. Roberson, 273 Ala. 230, 139 So.2d 604 (1962).
The petition for removal does not allege Stephens is unfit or disqualified. This court said in Starlin v. Love, 237 Ala. 38, 185 So. 380 (1938):
"While the court has an inherent right to revoke letters, that right is within the limit of certain bounds, and must be for cause. . . . It can only be done when some other person has a prior right either under a will or the law, and has not waived that right and is seeking to enforce it, or when the person appointed is unfit or disqualified."
II
Ms. McCord challenges the constitutionality of § 84, Title 61, Code of Alabama, by her amended petition on the ground "men are to be preferred to women." Section § 84 provides:
"If several persons of the same degree of kindred to the intestate, computed by the rules of the civil law, are entitled to the administration, men are to be preferred to women, and the whole blood to the half blood; and when several persons are equally entitled thereto, the court may, in its discretion, grant letters to one or more of them; and when a married woman is entitled thereto, it may be granted to her husband in her right."
To question the constitutionality of a statute, a person must have some right specifically affected by it. Smith v. Potts, 293 Ala. 419, 304 So.2d 578 (1974).
There is no contest here between two persons as to who is the more suitable to be appointed administrator. Ms. McCord, by having waived her preferential right to be appointed, has no standing to raise the constitutionality of the statute.
Affirmed.
HEFLIN, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.